Teachers v. church schools v. the government

The conflicting claims of legal rights of church teachers and church schools are being further tested in the federal courts.

In California this week, a federal judge ruled in the case of Family, Life, Faith and Freedom v. Lynda Serrano. In this case, a Calvary Chapel school sued two former teachers to prevent them from suing the school.

The teachers refused to submit statements of faith and pastors' recommendation letters, a year ago, and they were let go. The school deems its teachers to be "spiritual leaders," and considers the paperwork necessary in evaluating instructors' continuing spiritual leadership qualifications. It's not clear from the court documents why the teachers did not want to explain their faith and get pastors to write them letters of recommendations, but when their contracts were not renewed, they threatened to sue for wrongful termination. The church school then took its former teachers to federal court.

The lawyers for the school argued that if the teachers were allowed to make the case they had been discriminated against, that would violate the church's constitutionally protected right to the free exercise of religion.

Judge Dolly M. Gee, an Obama administration appointee, granted the teachers' motion to dismiss the suit on Tuesday. Interestingly, the ruling doesn't go so far as to say the teachers can sue their religious employer, but does say federal law cannot prevent them from filing wrongful termination suits in state court.

Gee wrote:

it is apparent that Plaintiff’s entire complaint consists of anticipated defenses to a yet-to-be-filed state court religious discrimination suit, and thus no federal question is raised. This Court therefore has no subject matter jurisdiction.

The judge criticized the lawsuit fairly harshly, calling the school's lawyers incompetent several times, and suggesting the suit was meant to harass and intimidate the ex-teachers. Some of the school's arguments would have been "dispelled by a modicum of competent legal research," Gee wrote. The church was ordered to pay the ex-teachers' lawyers' fees.

The school, for its part, will reportedly appeal the decision.

This case connects to the landmark Supreme Court decision handed down last year, where the court ruled the First Amendment right to free religious exercise entails a "ministerial exception" to laws against employment discrimination. In Hosanna-Tabor v. EEOC, the Supreme Court decided religious groups get to establish their own standards for determining who is a minister, and that if someone is considered to be a minister, they are not entitled to protections against employment discrimination. Ministers can be fired for basically any reason.

The Hosanna-Tabor case involved a "called" teacher at a Lutheran school. She got sick, went on sick leave, and then when she was approved to go back to work by her doctors, the school made moves to dismiss her because of anxieties about her condition, narcolepsy. The teacher threatened to sue, and then the school fired her for making the threat, which they said was a violation of their beliefs about conflict between Christians.

No secular school would have been allowed to fire that teacher. No religious school would either -- unless it had established that teachers were more than teachers, they were ministers, and so subject to all the capriciousness of those they served.

In the majority opinion, Chief Justice John Roberts wrote, "The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision."

In Family, Life, Faith and Freedom v. Lynda Serrano, the Calvary Chapel school lawyers cited Hosanna-Tabor, about the rights of religious groups to not be held to the standards of employment law. The teachers at their school are also considered ministers, and were also fired for threatening legal action against a church school employer. The school's lawyers attempted to argue that the ministerial exemption from employment law should also mean protection from possible discrimination litigation in state court.

According to Judge Gee, the federal courts don't have the jurisdiction necessary to block anticipated state court lawsuits that might violate churches' religious right of hiring and firing ministers. Whether or not the appeal will go anywhere remains to be seen.

It seems likely, though, that the courts will be facing more cases like this in the future. They'll continue to hear cases where there are conflicting claims about the rights of teachers and church schools, where they have to determine the scope of this constitutional protection of a "ministerial exception," and figure out the consequences and the logical, legal extensions of last year's landmark decision for religious liberty.

Read More

Strategic misremembering

There was a lot of celebration following the Supreme Court's decision in Hosanna-Tabor v. EEOC. For those who see themselves as defenders of religious liberty, the decision was a victory. A triumph. Religious liberty won, the "current Administration’s audacity" and "an unprecedented aggression" was "repudiated by a unanimous Supreme Court," and the "secularists" were taken to the woodshed.

So why are those who celebrate this victory systematically misrepresenting it?

In a prime example of this misrepresentation, Timothy George and Thomas G. Guarino summarize the case incorrectly at First Things. They write:

"Not long ago, the Equal Employment Opportunity Commission (EEOC) challenged the 'ministerial exemption' traditionally granted to churches so they may choose their ministers according to their own criteria, unhindered by state interference. The arguments advanced by the executive branch of government, in Hosanna-Tabor v. EEOC, would have significantly reduced those protections. Fortunately, the United States Supreme Court, insisting that religious freedom is the cornerstone of democracy, unanimously supported the traditional exemption."

In case you weren't counting, the brief summary used "traditional" twice. Once: the exemption that is "traditionally granted." Twice: the "traditional exemption."

The word has resonances, obviously, with a narrative of conservatism as defense of the "way things are," resistance to government overreach and liberals' and secularists' radical attempts to restructure society. Those on the Hosanna-Tabor side of Hosanna-Tabor v. EEOC, are, in this rendering, not just on the side of religious liberty, but also on the side of tradition. The side defending what conservative thinker Russell Kirk would have called custom, convention, continuity -- preservation of these three being the second of Kirk's conservative principle. Defending, that is to say, vis a vis the third Kirk principle, "things established by immemorial usage."

As neatly as this narrative works, though, it doesn't fit the case at hand. The exemption at issue in the case is not traditional. According to the unanimous opinion of the Supreme Court that found in favor of Hosanna-Tabor, this isn't an issue of tradition. The question is rather about the extent of an exemption, and understood, critically, as a question over the definition of "minister."

The question was whether the exemption that does have a legal precedent (in lower courts) should be understood to also include the specific, unusual kind of exemption from discrimination law that was claimed by Hosanna-Tabor, a Lutheran school that fired a teacher and rescinded her "calling" after she got sick.

Chief Justice John Roberts wrote the unanimous decision. That decision says: "Until today, we have not had occasion to consider whether this freedom of a religious organization to select its ministers is implicated by a suit alleging discrimination in employment."

As Roberts understands the issues of the Supreme Court decision, it's not a matter of upholding tradition. It's not -- contra First Things -- a case of rejecting a strange new governmental imposition of rules that ignore the freedom of religious exercise, citing precedent and being done with it. Rather, as Roberts puts it, it was a matter of considering the constitutionality of one kind of use of the exemption that has never been considered before.

Thus: a new thing.

Lyle Dennison, a journalist who has covered the Supreme Court for 54 years, reported that what the court did, in this decision, it did for the first time.

He wrote, "the Supreme Court on Wednesday unanimously gave its blessing -- for the first time -- to a 'ministerial exception' to federal, state, and local laws against virtually all forms of discrimination on the job."

And, "The Court, as it acknowledged Wednesday ... has never recognized an explicit 'ministerial exception' to anti-discrimination laws at any level."

Again, it's not about tradition and upholding tradition. So why represent it that way?

If you read John Roberts' decision, which is easy enough to do, it's clear that there were three arguments in the case, all of which came down to the issue of what should define a "minister" for the ministerial exemptions to equal employment opportunity law.

In the first argument, Roberts writes that,

"We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision."

The fact that the court ruled that there is such an exemption as the the ministerial exemption is important, but the more significant fact to note, here, is how that position eligible for the exemption is being defined. It's being defined by the religious group itself. There's no objective standard, dictionary definition, or legal requirements for a minister. Religious groups decide and define for themselves.

In the second argument, where Roberts turns specifically to the case of Hosanna-Tabor firing a teacher, the issue is the same. It's the question of definition, not tradition or traditional exemptions. Roberts writes that the teacher in the case was a minister because she was "held ... out as a minister," by the church, "with a role distinct from that of most of its members." He writes that, further, the teacher "held herself out as a minister of the Church." Roberts adds that there was a process she had to go through and additional training she had to undertake to get the title, "minister," and that in that capacity she did serve "important religious functions" for the church.

In the third argument, Roberts responds to those arguing against Hosanna-Tabor. He writes why the EEOC is wrong,and its argument has to be rejected. Critically, he doesn't say they're wrong because they think the government has the right to interfere with religious groups' internal decisions about who will minister. Contrary to those who supposedly celebrate this decision, the decision isn't about state interference, but the definition of minister, according to Roberts. He writes that the EEOC was

"contending that any ministerial exception 'should be limited to those employees who perform exclusively religious functions.' We cannot accept that view. Indeed, we are unsure whether any such employees exist. The heads of congregations themselves often have a mix of duties, including secular ones such as helping to manage the congregation's finances, supervising purely secular personnel, and overseeing the upkeep of facilities."

In Dennitson's gloss on this, he writes that, essentially, employees are not protected by anti-discrimination laws or employment laws if they work for a religious organization that defines them as ministers. And "the employee could be anyone from the congregational leader, on down to any worker considered to be advancing the religious mission" by the religious organization, according to the religious organization's internal criterion.

Any Supreme Court ruling of course works on several different levels, in different spheres. One is the legal, how the ruling is understood by judges and lawyers in all the federal courts, how it shapes future decisions of the EEOC and lawmakers, etc. Another one, though, is how it's understood culturally.

It seems to me that, culturally, this case is consistently represented as something it's not. The court's decision is being misrepresented by those who like it and celebrate it. Though the decision really only did come down a short time ago, the memory of it seems to have gotten kind of turned around.

The misremembering seems like its in service of a larger narrative. The question is, is it strategic?

Read More